Bava Metzia - Daf 118
- If הבטה בהפקר acquires (שומרי ספיחי שביעית)
Rabbah said that הבטה בהפקר – whether watching ownerless property acquires it, is a machlokes Tannaim. A Mishnah states: שומרי ספיחי שביעית – those who guard the aftergrowths of shemittah to use for the עומר and שתי הלחם, are paid from the תרומת הלשכה (hekdesh funds from the annual half-shekel tax). Rebbe Yose says: הרוצה מתנדב הוא ושומר חנם – whoever wants can volunteer and watch it for free. The Sages respond that if so, אין באין משל צבור – the [offerings] will not come from the community, but the watchman!? Rabbah explains that the Tanna Kamma holds הבטה acquires hefker, so if the watchman is not paid, he will personally own the aftergrowths. Rebbe Yose holds הבטה does not acquire, so the public will acquire the growths when they harvest it. Two other interpretations are offered: (1) All agree הבטה does acquire hefker, and they argue if חיישינן שמא לא ימסרם יפה יפה – we are concerned that perhaps he will not transfer them to the community [wholeheartedly]. (2) All agree הבטה does not acquire and argue if חיישינן לבעלי זרועות – we are concerned that strong-armed men may forcibly take the growths. Paying from hekdesh creates the impression they belong to hekdesh, which discourages people from taking them.
- Three Tannaim who hold כל מקום שנתנו לו חכמים רשות והזיק פטור – ex. Oven fire
Abaye said that Rebbe Yehudah, Rabban Shimon ben Gamliel, and Rebbe Shimon all hold: כל מקום שנתנו לו חכמים רשות – wherever the Sages gave one permission to do something, והזיק – and thereby caused damage, פטור – he is exempt from paying: (1) Rebbe Yehudah had taught in a Baraisa that one is permitted to leave manure in רשות הרבים during the season when this was commonly done, and in another Baraisa taught that wherever the Sages permitted someone to place something harmful in רשות הרבים, he is exempt from paying (the Tanna Kamma says he is liable). (2) Rabban Shimon ben Gamliel taught in our Mishnah: אף מתקן הוא את מלאכתו לפני שלשים יום – one may even prepare his work by storing materials in רשות הרבים for thirty days beforehand. Rashi explains that since the Tanna Kamma said one is liable for items left in רשות הרבים with permission, Rabba Shimon ben Gamliel’s response is understood to be arguing. (3) Rebbe Shimon taught in a Mishnah, regarding safety measurements given to prevent one’s oven from starting a fire, that one who follows these requirements is exempt from any damage which may occur.
- Vegetables growing in the vertical surface between two gardens of different elevations
The final Mishnah states regarding two gardens, one above the other, and vegetables are growing in the vertical surface between them (so their roots are in the upper garden’s soil, but the shoot systems are in the lower garden’s airspace), Rebbe Meir says they belong to the higher garden’s owner. Rebbe Yehudah says they belong to the lower garden’s owner. Rebbe Meir argues that since each party can prevent the vegetables’ existence (the upper owner can remove his soil, and the lower owner can fill his garden’s airspace), we follow where their nourishment is from, i.e., the upper garden. Rebbe Shimon has a third opinion: כל שהעליון יכול לפשוט את ידו וליטול – Anything the upper [owner] can stretch his hand and take, belongs to him, and the rest belongs to the lower owner. Rava said that all Tannaim agree that the roots belong to the upper garden’s owner, and they only argue about the shoots above ground. Rebbe Meir holds: שדי נופו בתר עיקרו – throw its shoot after its root to follow its halachah, and Rebbe Yehudah disagrees.
